• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Envoking your right to remain silent requires YOU to remain silent

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
The old adage is "Better for 10 guilty men to go free than for one innocent man to be wrongly punished."
You know... the only reason this old adage IS an old adage is that we assume "the system" has a preference that guilty people are punished, and innocent people are not.

I'm not so sure we can assume such feelings to be so sure as they once were.

TFred
 

wrearick

Regular Member
Joined
Mar 6, 2013
Messages
650
Location
Virginia Beach, Va.
I would take it one step further. I base this on an understanding--which I will explain--of case law (court opinions).

Instead of asking whether you are free to go, openly declare that you do not consent to the encounter (with police). "Officer, no offense, I know you are just doing your job. But, I do not consent to an encounter with you."

Using a tennis metaphor, you just smacked the ball back across the net. And, he has to play it correctly. Why? Because it forces the cop to have enough information to reasonably hold you while he investigates further (detain you), or release you, or open himself to lawsuit. That is to say, the instant you expressly declare it is a non-consensual encounter, then the cop must have the legal minimum threshold of suspicion to hold you longer while he investigates further. If he doesn't have information to justify that legal minimum threshold (called RAS--reasonable articulable suspicion) and holds you even one second longer, then he is open to lawsuit.

This is a tiny little door the government accidentally left open for citizens. Government spent reams and reams of court opinions determining whether this encounter or that encounter with police was consensual. In doing so, government (courts) waved a giant flag saying, "Hey, if the person just refuses consent, then the only way the cops can force the encounter on the citizen is if the cops have genuine RAS. Or, stated backwards, if the citizen refuses consent, then cops gotta have RAS to force the encounter on the citizen."

The short story is that any cop can contact any citizen consensually, and ask him questions. No minimum level of suspicion required. (Terry v Ohio)

So, if the citizen declares he does not consent to the encounter, the only way the cop can legally force the encounter on the citizen is if the cop has the minimum level of facts to meet RAS.

Thus, I suggest expressly declaring you do not consent to an encounter. It forces the cop to either leave you alone or have enough facts to meet reasonable articulable suspicion. Whether he has those facts or not is not my point. My point is that refusing consent to the encounter is one tiny bit of tactical initiative left open to you by the courts. If the cop does not have those facts and continues the encounter, he is open to lawsuit or formal written complaint.

So, my compantion rule is to declare often (by implication) that it is not a consensual encounter. That is to say, if I say I don't consent to the encounter and the cop doesn't release me instantly, then I just assume I am being detained and start serving across the net:

"Why am I being detained?"

"When will I be released from this detention?"

"The first words out of my mouth were that this is not a consensual encounter."

Repeat in any order.

With any luck the cop will screw up and tell you that you can leave after you answer his questions. (Violation of Title 42, the civil rights act, coercion to waive rights. You've invoked your right to remain silent. But, the cop is going to hold you until you waive the right to remain silent by answering his questions.)

NOTE: Many states and localities* require you to identify yourself to a police officer if he has enough facts to meet reasonable suspicion. Since you can never know for sure whether he has that much facts--he can lie about the facts he has (google "permissibe deception"). Thus, I recommend being very, very careful about refusing to answer an identity question.


*Just because a state law does not exist requiring you to identify yourself to a cop does not mean the local jurisdiction cannot have an ordinance requiring it--and penalizing refusal. I've seen some pretty stiff penalities in local ordinances for refusing to identify yourself to a cop--name and address. Up to a year in jail and a $2500 fine. So, while refusing to answer questions, keep in mind the US Supreme Court has already validated penalties for refusing to identify yourself. See Hiibel vs 6th Judicial District Court.

Thank you! Very informative and I will follow this advice should the need arise.
 

All American Nightmare

Regular Member
Joined
May 25, 2009
Messages
521
Location
Never Never Land
Not sure I follow .... I believe you can be detained (not free to go) without being under arrest for a brief period of time while a LEO investigates/conducts fact finding an possible crime. However since I am not a lawyer I am not sure. Can you point me to where it is legally stated/case record/codified etc. that being detained and under arrest are the same thing?

I do want to be prepared in case of an encounter and seek to make the learning curve as painless for me as possible. I have no problem changing my prepared question to "am I under arrest" but want to be sure if the answer I get is "No, you are not under arrest" that I am legally free to walk away without another word or comment to the officer.
You are right you can force their hand. If they say you are being detained fine then your next response is Then I'm under arrest I have nothing further to say until I have legal counsel present. Most of the time they will lie or not answer the question. You have to make the choice just how far you are willing to push your luck you either stand your ground or bow down. There is no replacement for experience in this situation. There is a SCOTUS case that says cops can lie in the lawful performance of their duties.https://en.wikipedia.org/wiki/Frazier_v._Cupp There is a double standard If we lie then we get charged with https://vacode.org/18.2-460/ It is too many scenarios to go through. I do not come from a legal background but I have tons of real world practical experience in this matter. Bottom you really can't prepare for this. If it was me I do not consent to this encounter am I under arrest If no I walk and say nothing else. VA is a common law state and no stop and ID law exist. You are not required to show ID ever however you must at night state name and address (Common Law) Record any encounter you have It will save your Bacon.
 

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
Not sure I follow .... I believe you can be detained (not free to go) without being under arrest for a brief period of time while a LEO investigates/conducts fact finding an possible crime. However since I am not a lawyer I am not sure. Can you point me to where it is legally stated/case record/codified etc. that being detained and under arrest are the same thing?

I do want to be prepared in case of an encounter and seek to make the learning curve as painless for me as possible. I have no problem changing my prepared question to "am I under arrest" but want to be sure if the answer I get is "No, you are not under arrest" that I am legally free to walk away without another word or comment to the officer.
Check your state statutes. For example, in Missouri we have a statute that explicitly defines what a ARREST is and when it occurs. I've been researching the publicly available court rulings and have yet to discover a state court case that nullified the statute definition of ARREST or redefined that statute.

Arrest - RSMo 544.180. An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise. The officer must inform the defendant by what authority he acts, and must also show the warrant if required.
I have used this one time to my advantage. No other opportunity has presented it self.

After that incident I sent, via USPS (return receipt required), to my local cop shop a formal notice that under RSMo a cop better have "a warrant or otherwise" and he must "inform the defendant (me) by what authority he acts." The formal notification could've been circular filed or taken seriously, I do not know, I only know that formal notification was given and received.

Post Heien our efforts to hold LE accountable for even the slightest of slights against individual liberty is even more complicated.

Do not talk to cops...even to tell them you are not talking to them. You will likely get a "24 hold" because many cops hate being ignored (contempt of cop) but the cops will expose themselves to civil and hopefully criminal penalties.

Eliminate QI!
 

solus

Regular Member
Joined
Aug 22, 2013
Messages
9,315
Location
here nc
practiced personal mantra:

may i help you officer? (provide documents ~ period!! no other response is provided)

may i help you officer?

may i help you officer if not am i free to go?

am i free to go? (no response) i turn and leave w/o looking back.

https://www.youtube.com/watch?v=6wXkI4t7nuc (4 youtube videos)(best 4 hours you will spend sucking up knowledge)

http://www.javelinpress.com/you_and_the_police.html (excellent resource and needs reading at least every year)

ipse

don't forget recording device...if permitted to record.
 

Citizen

Founder's Club Member
Joined
Nov 15, 2006
Messages
18,269
Location
Fairfax Co., VA
Asking because I don't know, not to be argumentative, but is that written somewhere or what makes then stop?

Miranda vs Arizona. If the person in custody decides to stop answering questions and calls for an attorney, then questioning must cease.

From Miranda v Arizona:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. (emphasis added by Citizen)

https://www.law.cornell.edu/supremecourt/text/384/436
 

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
Miranda vs Arizona. If the person in custody decides to stop answering questions and calls for an attorney, then questioning must cease.

From Miranda v Arizona:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. (emphasis added by Citizen)

https://www.law.cornell.edu/supremecourt/text/384/436
Caveat - reminder.

If at any point, the individual responds to questions or volunteers information then the game goes hot again and the process of needing to invoke one's right to be silent begins all over. KYBMS.
 
Last edited:

OC for ME

Regular Member
Joined
Jan 6, 2010
Messages
12,452
Location
White Oak Plantation
You can always resort to the TV tactic "Charge me or open the door!"

Do not talk to the cops...ever. They will talk themselves into a position where they would have been better off to KTBS.
 

thaJack

Regular Member
Joined
Aug 8, 2007
Messages
70
Location
Roanoke, Virginia, USA
Unfortunately, per court rulings one MUST open their big mouth and loudly, clearly, and unequivocally INVOKE their right to remain silent!:shocker:

Yep, I was just about to say the same thing. As odd as it sounds, in order to invoke your right to "remain silent", you must do so verbally.
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
Virginia is a "one party" required to record state....if in public and no expectation of privacy.
http://www.dmlp.org/legal-guide/virginia-recording-law

Actually, in Virginia, anyone can record in public places where there is no reasonable expectation of privacy, even if it's not his own conversation. If you are a party to a "private conversation", then you can record the other parties without their knowledge of consent. The law only protects "private conversations". Note there are special rules as to admissibility of evidence where the recorded conversation takes place over the telephone - these rules don't affect permissibility, only admissibility.
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
You're only required to verbally invoke your right to keep silent if you want the interrogation to stop; there's no law that says you have to say anything at all at any time; you could just sit there and say nothing for as long as they want to keep you awake without food and water under the harsh lights.
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
Most on here know this but a good reminder of why you should KYBMS (Keep your big mouth shut) when dealing with Law Enforcement.

http://pilotonline.com/news/local/c...cle_0e58b2bc-a834-5509-be29-cde3c0e6b9b3.html

a companion rule is Ask often if you are free to go and if you are ----> GO!

True. And I am immensely gratified by the use of the acronym, "KYBMS" - I've been harping on it for years and it appears to be sinking in. Don't forget that in a stressful situation (e.g., there's a dead guy bleeding out on your living room carpet at two o'clock in the morning and the cops want to know why), look at your right hand and remember that the five fingers represent five letters: "K Y B M S". It's ok to say, "I want my lawyer!" and "I Prefer not to chat, thank you; am I free to leave?". Other than that, Keep Your Big Mouth Shut. If they have probable cause to arrest you, they are going to do so; if they do not have probable cause, talking to them will give them probable cause. They'll tell you they have to arrest you unless you talk to them; call their bluff. Better to spend three days in jail than twenty years in the penitentiary.
 

color of law

Accomplished Advocate
Joined
Oct 7, 2007
Messages
5,950
Location
Cincinnati, Ohio, USA
Salinas v. Texas, 133 S. Ct. 2174 - Supreme Court 2013
Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self-executing" and that a witness who desires its protection "`must claim it.'" Minnesota v. Murphy, 465 U.S. 420, 425, 427, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984) (quoting United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U.S. 155, 164, 75 S.Ct. 668, 99 L.Ed. 964 (1955), a witness does not do so by simply standing mute. Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner's Fifth Amendment claim is affirmed.
 
Top